FGB Saturday: Big Discussion on Marriage

This group of posts first came to my attention through this post by Andrew Koppelman, responding to David Benkof, who was responding to Koppelman. (It's all very civilized, and I wish some of the people I respond to would do me the courtesy.). The immediate subject is fairly specialized (interstate recognition of same-sex marriages) and may or may not be of interest. We'll see.

However, I of course checked out Benkof's blog. The title should have tipped me off: "Gays Defend Marriage." It's described as "A website for LGBT folks who support marriage as the union of husband and wife—and getting the gay leadership to return to more pressing LGBT issues for our community." If you've been following FGB here, you'll have noticed that this sort of thing seems to be rearing its head more and more frequently. Let me make it very clear: I support the right to marry for everyone because I support equal treatment under the law. Period. Unless there is what the courts call "a compelling state interest," you're going to have to do some pretty spectacular reasoning to convince me otherwise. This does not mean, however, that I don't recognize the importance of ENDA, the repeal of DADT, and guarantees of basic civil rights to gay citizens across the country. Please explain to me why suddenly we're only able to do one thing at a time, since we've been working on all of the above for the past forty years. And I might point out that the "gay leadership" has been working on those "more pressing" issues, with results that we can all applaud (cue crickets). It appears that marriage, for those who've been hiding under a rock for the past decade and a half, is the fight we have, so let's fight it, mmkay?

Nevertheless, I decided to give Benkof a look, thinking maybe there is someone who really has some logical, rational, reasonable and secular arguments against same-sex marriage. I started with Benkof's post on whether marriage is a civil right.

Well, here we go again. Benkof notes that "The United States Supreme Court, for example, has never found a right to same-sex marriage in the text of the Constitution." True. I defy him to find a right to marriage for anyone in the text of the Constitution. He won't, I promise you. This is something that lawyers don't like to deal with, but there are a whole host of rights that are assumed in the Constitution, as evidenced by the Ninth Amendment, which was included specifically to point out that those rights enumerated in the previous eight amendments are not the sum total that the Founders expected the government to recognize. The Supreme Court did find, in Loving v. Virginia, that the right to marry is a fundamental right; if you're going to grant that, and I think you must, then it necessarily follows that the right to civil marriage is one that belongs to all, not just a select group -- absent, of course, the aforementioned "compelling" reason to withhold it. (I know it's irritating to have to keep reading that, but the minute I don't put it in, some screwball is going to start pointing and yelling.)

So, Benkof manages to fall flat on his face right at the beginning. The fault here is one shared by such as Antonin Scalia, which is simply that the question is fined down in such a way as to produce a foregone conclusion: sorry, boys, but the quesion is not whether there is a right to same-sex marriage, but whether there is a right to marriage. The courts say there is. If I'm going to be persuaded that same-sex marriage should be a special case, I need to see some pretty tight reasoning employed, and I mean something that goes beyond "tradition." Benkof doesn't deliver.

He ends his post with this cute little story:

Personally, I like the approach to this question of a bright law professor and liberal activist from Illinois who said in 2004 that “I don’t think marriage is a civil right” while at the same time attacking gay-bashing and supporting workplace protections from discrimination on the basis of sexual orientation. He’s done very well for himself since then - in fact, he’s the presumptive Democratic nominee for President of the United States. That fact alone is probably the civil rights achievement of the century. If it’s good enough for Barack Obama, it’s good enough for me.

Well, it's not good enough for me. (And, as you may have gathered, Obama was wrong about marriage not being a civil right, too. And he, of all people, should have known better.)

I will be looking at some more of Benkof's writings here over the next couple of days. He has posts about the California case, religious freedom, and Loving, and so it may be worth our while to take a poke here and there and see what squirms. I may even get back to Koppelman's post and that whole discussion, although it still seems a little specialized.

Update: On second thought, I just read through Berkof's post on the religious freedom aspect of the marriage debate. OK, this guy is your standard issue right wingnut. Benkof offers a completely specious argument in favor of religious belief being a determining factor in the marriage debate, because, among other reasons, Barack Obama says that religious beliefs should enter into the discussion. Apparently Benkof forgot one little detail: the Establishment Clause of the First Amendment. He apparently can't see the difference between activism based on religious belief and writing sectarian doctrine into the law.

Benkof displays a marked tendency to argue from authority, which those of you who have any familiarity with reasoned debate know is at best iffy. In scientific discussions, you're automatically disqualified. It's not that authority said it that counts, it's what they said and how it holds up to scrutiny. All of which is by way of saying that Benkof doesn't seem to have an argument and knows it, so Barack Obama's personal opinion is going to have to take its place.

I doubt that I'll waste any more time on this clown.